Brian Edwards Media

What ACT’s Jamie Whyte could learn from Albert Einstein

In a remarkable coincidence two Essex district court judges are arrested on the same night for riding their bicycles without lights. On the following morning they turn up at court to answer the charges.

“Well, this is bloody embarrassing,” says Judge Brown. “How are we going to handle it?”

“Oh, I don’t see any problem at all,” says Judge Green. “You can hear my case and I’ll hear yours.”

“Brilliant!” says Judge Brown. “I’ll judge your case first.”

Judge Green takes his place in the dock.

Judge Brown: You are charged with riding a bicycle at night with no lights. How do you plead?

Judge Green: Guilty, your honour.

Judge Brown: Very well. Fined five pounds. Stand down.

They change places.

Judge Green: You are charged with riding a bicycle at night with no lights. How do you plead?

Judge Brown: Guilty, your honour.

Judge Green: Very well. Fined ten pounds. Stand down.

“Hang on,” says Judge Brown. “I just fined you five pounds for the identical crime.”

“I know,” Judge Green replies, “It’s a deterrent sentence. There’s far too much of this going on. This is the second case we’ve had today.”

I was reminded of this old joke by the announcement by ACT leader Jamie Whyte that the party’s three-strikes policy will now apply to burglaries as well as violent crimes. Three convictions for burglary will now earn you a sentence of three years in jail. A deterrent sentence.

I understand that Dr Whyte is a philosopher. I studied Logic and Metaphysics (really just a posh word for Philosophy) myself at university and, from observing my fellow students, formed the conclusion that logic and metaphysics might be mutually exclusive. The philosophy students weren’t that good at thinking clearly or rationally. Dr Whyte’s latest announcement does rather seem to support that cynical view, though he has shown remarkably good sense on the issue of decriminalising cannabis.

There are several problems with deterrent sentences.

The first is that they don’t work. At least not with the people they are meant to deter. For a deterrent sentence to work, a person about to commit a crime has to be aware of the likely sentence, assume that he or she will be caught, arrested and convicted, and decide that the risk isn’t worth the gain.

This works reasonably well with law-abiding citizens like you and me who would really like to drive our new BMW at 180k on the motorway, but are deterred by the thought of being arrested, appearing in court, receiving a hefty fine, losing our licence and having our names published in the newspapers and maybe on the telly. People like us are good at thinking and considering the consequences of our actions.

In general the people we call ‘criminals’ aren’t particularly good at thinking or weighing the consequences of their actions. The burglar won’t put down his jemmy to consider Dr Whyte’s increased penalties for burglary. He doesn’t think, “Hmm. I’ve been banged up twice already for nicking stuff from people’s houses. Previously I might have got 18 months, but now I’ll get three years. I really don’t think it’s worth the risk. I’ll go and get a job instead.”

Leaving aside the burglar’s chances of getting a job with two convictions under his belt already, he’s unlikely to go through this process of considering the length of sentence he’ll get for a third offence. By definition, recidivist criminals aren’t good at learning from their mistakes. So our burglar is more likely to think: “I’ve done 30 burglaries, got nicked twice, not a bad average. And I probably won’t get nicked again anyway. I’m better at it now. Learnt a lot in the slammer.” The near total failure of the New Zealand police, who are brilliant at catching murderers, to catch burglars might suggest that he has a point.

But if our friend does get caught and sent to prison for three years, what will that achieve?

Well, our daily prison muster rate is the second highest in the Western World and already challenging our ability to house all the people we give prison sentences to, will swell and with it the financial cost to the nation. The Prime Minister agrees. He says, “Chucking people in prison is a very expensive way to go, and it can be a nursery for teaching people to become more effective criminals.”

Dr Whyte argues that the extra cash will be more than be made up for by the money saved from all the burglaries our friend can’t commit during his prison lag. Just where that money from un-stolen goods in un-burgled houses is and how it gets into the government’s coffers I’m not quite sure. Perhaps the philosopher can explain.

And then there’s the problem of what happens when our burglar has completed his third lag. The chances of him having saved any money from the pittance a prisoner can earn are about as lean as the chances of him getting a job. So it’s back to the jemmy and the lock-pick.

Albert Einstein once observed: “Doing the same thing over and over again and expecting a different result is a definition of stupidity.” This is the problem with advocates of harsher prison sentences for offenders. Like the people they want to incarcerate for longer and longer terms, they seem to have limited ability to think, to learn from experience or to predict the consequences of their actions. Other than keeping incorrigible violent offenders away from society, heavier sentences do little to reduce criminal offending. Advocates of such penalties are like the man who pours a bucket of water on a fat fire in his kitchen and ends up burning down his house. He concludes that clearly the problem was ‘not enough water’.

In the best traditions of an Association of Consumers and Taxpayers, Dr Whyte presumably places equal importance on crimes against property as on crimes against the person. Tradition is on his side. The earliest laws were almost exclusively concerned with offences against property. You could beat your wife or children with impunity, but a maid could be bundled off to the prison colonies of Australia for stealing a handkerchief, a thief hanged for stealing a sheep. Ah, the good old days!

And then there’s the question: which New Zealanders will end up earning the three strikes? Among the commonest causes of criminal offending are social deprivation, poverty, unemployment, poor educational achievement, substandard housing and being raised against a dysfunctional or violent family background. Colonised peoples across the globe tend to be over-represented in these areas.

Dr Whyte must know this. He must know that Maori are already massively overrepresented in our prisons:15 percent of the population, 51 percent of inmates. So he must also know that his new three strikes law will almost certainly serve to increase the numbers and proportion of Maori in our prisons. I don’t think that’s a good idea.

But then, Maori are people, not property. I’m not a philosopher of course, so I’ve probably missed something.

And finally, back to Judge Brown and Judge Green. There’s quite a serious point in this silly story. When a judge increases an offender’s sentence ‘as a deterrent to others’, the extra months or years he imposes are designed to prevent entirely hypothetical future offences of the same type. The offender is thus being punished not only for his own crime but for the notional future crimes of others. It clearly doesn’t pay to be the second person in court charged with riding a bicycle without a light.

And by the way. Judy and I were burgled in the middle of the night in our Herne Bay home. The burglars were disturbed (by Judy!) and only got away with my laptop. So I agree with Dr Whyte that this is not merely a frightening but an emotionally traumatic experience. The cops were lovely but told us that they didn’t have a snowball’s of catching the offenders. If they ever do catch them, I would argue against sending them to prison, even if it was their third offence. Yes, I lost all my emails and, worse, my family photographs, but it’s only a bloody laptop for god’s sake. Not worth taking away three years of someone’s life.

But then I’m not in the business of trading votes for people’s liberty.

By 2007 we were leaving the US well behind, and we continued that trend through to 2010, increasing our prison population per capita when the US actually managed to decrease theirs.

In recent years both countries have started to reverse the trend, with NZ doing slightly better. Not a record of which we can be proud… unless, like Dr Whyte, you believe locking more people away (and for longer) is some sort of an achievement.

Yep, it’s wrong and I’ll change it, Graeme. The list you’re referring to has 223 countries on it. We are, as you say, number 74. That’s 73 countries that have higher rates of incarceration than us with the US at the top, and 159 that have lower rates of incarceration than us. Unfortunately most of the countries we would expect ourselves to be compared with and some we probably wouldn’t want to be compared with have lower rates of incarceration than us. A more accurate statement might be that New Zealand has the second highest rate of incarceration in the Western World. I’ve now included the list in the post. Readers can judge for themselves. If you look at the countries below us, it’s still a shameful record.

With Russia and Cuba at one end and Guinea Bissau and the Central African Republic at the other extreme I am not sure that ranking on this list tells us very much other than that we are around the middle somewhere

What surprises me is that burglary figures have decreased yet social depravation and poverty have increased. This may find your proposition counterintuitive.
But…I was standing in line at my local police station with a bike I had found abandoned and in front of me was a lady trying to report a burglary. She was strongly dissuaded to forget the report as she had recovered the goods and the officer considered it not worth proceeding with. Are burglaries really less or the reporting of crime not as accurate?

The philosophy students weren’t that good at thinking clearly or rationally.

Really? As someone who trained as a philosopher and is still paid to teach it despite trying to leave (philosophy is the academic equivalent of the Hotel California), I try to avoid arguing with non-philosophers because it’s often like trying to play football against people who don’t understand the offside rule.

Whyte knows about the deterrence theory of punishment, and he almost certainly knows about akrasia. My guess is that, as a Libertarian, he’s probably a retributivist and doesn’t think that deterrence is a legitimate reason for punishment. That would put him in the minority of philosophers, but since he’s a paid up member of the very small number of ultra right libertarian philosophers, he’d be used to that. Everyone who does philosophy long enough comes across them. Some grow out of it, but there is a hard core who have alienated themselves from the rest of the profession.

But the three strikes law is a cynical piece of vote grabbing aimed at the more authoritarian among the population. What’s worse is that the party proposing it is supposed to be for lowering public spending, not increasing it via the prison budget. Then again, my experience of people at that end of the political spectrum has been that they are quite willing to make prisoners work as slaves or sell their organs to pay for their own imprisonment, along with forcibly sterilising people who have children they can’t support, etc.

Nevertheless, your point about the ineffectiveness of deterrence is well made. I would say the same of punitive welfare policies, since the reason people are on welfare is often to do with akratic behaviour. I wish this view would get more air.

Because if you’re looking for many synonyms for terms like “trousers” or “contemptible person”, English is your go to language. But if you are looking for terms to describe anything conceptually complicated, they are bound to be loan words.

Economists have some other phrase for the same thing, but I can’t remember what it is.

You’re fortunate your burglar was interrupted and only a laptop pinched. If the offender was arrested and jailed there would be a period when he was removed from plying his ‘trade’. What they get lagged for is mostly a small portion of what they’ve done. Other houses would have been cleaned out with greater loss and trauma to families.

The onus should be on the crims to learn from Einstein’s proverb, not the other way round.

I don’t disagree with you that we got off lightly compared to some and it is undoubtedly hugely traumatic. But I doubt there’s any great difference between the burglar who, if you like, gets lucky and the burglar who only scores one laptop. You won’t like this viewpoint, but my view of the essential difference between people on the right of politics and people on the left, is that those on the right tend to concentrate on effects while those on the left concentrate on causes. Some years ago, with the well known criminal defence lawyer, Michael Bungay, I co-authored a book called Bungay On Murder. Our essential conclusion about these killers was ‘There but for the grace of God, go I.’ Perhaps it should be ‘There but for the grace of hereditary and environment’ go all of us. That’s rarely a right wing view.

The decisions of the human will are not simply “an effect”. They are also a cause. Neither volition, nor conscience, nor environment and genetics exists in a vacuum. They each influence one another.

To that end, the possibility of punishment for a breach of the law/acceptable behaviour is a form of dealing with a “cause”. It isn’t the only one, and punishments must be just/proportionate.

You concentrate on how many ARE imprisoned – and I agree it is a sad statistic. Nevertheless, we will never know HOW MANY were once on the cusp, with the possibility of swinging either way. Some of my friends were like that. Good encouragement AND the possibility of punishment helped steer them to make good decisions. But I do concur that “there but for the grace of God go I”. A young man was killed at my old High School recently in circumstances that were not much different from what we did on a regular basis when we were there many years ago.

Also, in answer to your question to Mick below, yes, “there’d be less crime it governments adopted the tactics of the Mongrel Mob to deter offenders – violence and intimidation”. However, we don’t live in Saudi Arabia. In the main our laws are just. Nevertheless, we should spend more on rehabilitation. I doubt prison as conceived by the 19th Century Victorians does much of that….

Well, this is good, I don’t disagree with most of that. The ‘cusp’ approach is much favoured by Nigel Latta whom I deplore. It’s essentially based on the idea of a point in time when the effects of heredity and environment no longer apply. Total free will. As a determinist I’m more inclined to believe in the effect of environmental good luck.

In my experience those on the cusp make better choices mainly due to the influence of someone. So often their stories have a person who said or did this or that, often quite small, but it helped that person change their thinking and their willing.

Conversely sending someone on the cusp to prison is a sure guarantee they will not meet that one person whose words or actions will challenge their thinking. Indeed the opposite.

I like the word ‘scoundrel’. It has a kindly feel about it. I don’t believe in god and am a determinist. So I don’t put as much store on choice as you do? Let’s just say our choices are significantly determined by the combination of heredity and environment. At the extremes, the tens of millions of babies born into grinding poverty each year in the world have very little choice. It isn’t all Slumdog Millionaire. I’ve forgiven the scoundrels by the way.

Bungay on Murder is a good read. As I recall, one of Bungay’s premises was that the majority of murderers he represented were committing a one-off act and would almost certainly not offend again. I’m not so sure that remains the case for murderers in NZ today, but burglars are certainly more recidivist.

A few years ago we were burgled, and the offender left one of our kitchen knives upstairs while stealing my wife’s jewellery (inherited from her grandmother, inexpensive but irreplaceable). The knife was a signature move and lead to his capture, not that the loot was recovered. I wonder what would have happened if my wife had disturbed this man in the act?

A similar law seems to have been effective in Britain. I completely agree with addressing cause of criminality, but if consequences can be effective why not use them?

All of us act against our better judgement. I was a heavy smoker for 20 years. That was very much against my better judgement. I can scarcely condemn beneficiaries who spend their money on fags. I know the power of addiction. And the need for comfort when you’re poor.

Yes they do. It’s called “akrasia”, and people have been puzzled by it for thousands of years.

Everybody knows that the fast track to long term poverty is becoming an unwed teenage mother, even the people who become unwed mothers. The problem is when it comes to actually making a decision, they can’t put aside short term gain and so lose in the long run, and are fully aware of this. In technical terms, they are not economically rational actors.

Punitive welfare policies assume that the same people can be dissuaded from making poor short term decisions by imposing punitive consequences, which of course stupidly assumes that the targets of the policies are economically rational actors. No wonder it doesn’t work unless you ramp up the punishments to ridiculous and inhumane levels.

That’s not to say that we should get rid of punishment and personal responsibility, but that we should recognise the limits of such policies.

This seems like a somewhat mechanistic and not entirely generous view of how unwed mothers become unwed mothers. I would have thought hereditary and early environmental factors – intelligence, parenting, socio-economic status, level of education, race, religion, sheer bad luck etc – might all be factors in becoming an unwed mother.

Sure, all of those contribute to akratic behaviour, except luck. But it’s nevertheless true that most people who do it, do so while aware of the consequences.

I’m not making a moral judgement about the character of unwed teenage mothers. As a former smoker myself, I’ve engaged in my own brand of akratic behaviour. I’m just saying that it seems to be pointless, puritanical and flat out mean to impose punitive measures on people in the name of an obsessive fixation on personal responsibility, or to berate them about their lack of moral character.

Even more so because the “personal responsibility” brigade tend to be people who have enough personal insurance (in the form of wealth and social position) to avoid behaving responsibly themselves.

Surely race is irrelevant here? Apparently it is in all other apects of life. I can’t see how one’s race (italics) determines a predisposition to unwed motherhood, though the published evidence would indicate otherwise…

Not wanting to turn this into a religious discussion (the philosophers have already had a go!), and take the following reference to “sin” as culturally conditioned if you want (in context Paul is referring specifically to covetousness), but what you observe about ““akrasia”, and people have been puzzled by it for thousands of years” is correct. The following was written in approximately 60 A.D..

Romans 7:14-24: –

14 We know that the (Mosaic) law is spiritual; but I am unspiritual, sold as a slave to sin. 15 I do not understand what I do. For what I want to do I do not do, but what I hate I do. 16 And if I do what I do not want to do, I agree that the law is good. 17 As it is, it is no longer I myself who do it, but it is sin living in me. 18 For I know that good itself does not dwell in me, that is, in my sinful nature. For I have the desire to do what is good, but I cannot carry it out. 19 For I do not do the good I want to do, but the evil I do not want to do—this I keep on doing. 20 Now if I do what I do not want to do, it is no longer I who do it, but it is sin living in me that does it.

21 So I find this law (principle) at work: Although I want to do good, evil is right there with me. 22 For in my inner being I delight in God’s law; 23 but I see another law at work in me, waging war against the law (judgments) of my mind and making me a prisoner of the law (principle) of sin at work within me. 24 What a wretched man I am! Who will rescue me from this body that is subject to death?”

Hopefully not too far off topic but it am always intrigued me that fundamentalist preachers always go running to the “anti-Gay” stuff in Romans 1:18-32…when in context it is a rhetorical device to set up the argument that “righteous law-abiding” folks – like the Apostle Paul himself in the above passage, or Jamie Whyte – are ALL subject to

The UK Labour Party bought in a similar scheme and burglaries are down 35%.
Einstein is right, that is why ACT is doing something different. Lenient sentences are not working so lets try a stiff one. And if the people who think deterrence does not work could explain why no one burgles the mongrel Mob headquarters and argue they are not deterred by the knowledge that they will get their head knocked off, I might take them seriously.

Robin, You assume no one has tried to burgle the Mongrel Mon headquarters but I doubt you know anything about that world.
The gangs regularly extract retribution from each other without fear; burglary would be a minor part of the much bigger drama of Utu going on in that world.

To quote Bob Dylan , If you got nothing you got nothing to lose. That’s a powerful and fearless place to be.
If you have ever meet someone in that position you would understand fear plays no part in their decision making.

Three strikes and you’re IN suits me! So you’re long on the negatives, Brian – what’s YOUR solution? Maori are 50% of the prison population because they commit 50% of the crime. You got a problem with that?

All prisoners should be in solitary confinement, period. And why are we so obsessed with how OTHER countries deal with their penal problems? What does that mean to us?

‘You people bewilder me.’ Not as much as the views you express here bewilder and horrify me. All prisoners should be in solitary confinement.’ That’s a recipe for madness, the sort of cruel and unusual punishment that even the Americans find unacceptable or at least pay lip service to finding unacceptable while they inject human beings strapped to gurneys with lethal drugs. What are you? A savage? And are you uninterested in the reasons why 50% of the New Zealand prison population are Maori, why such a high proportion of Maori feature in our crime statistics. You’ve got basically two options: bad blood or historic and current environmental factors that determine our chances of living a full and productive life ? People like me bewilder you? People like you make me despair of humanity.

Think about this, please Brian – and you too, Richard. If a 13 year old tagger or window-smasher was committed to a weekend of solitary – Friday to Monday, no visits, no radio or TV or PC, no cell-phone and no company….just his 3×3 cell and a meal shoved under the door 3 times a day, with the promise from the judge that if he appears before a court and is deemed guilty any time in the next 5 years, he’ll be in for 3 weeks….do you think he’ll forget that when the opprotunity arises to offend again? Probably not. Solitary = MUCH shorter sentences. And also no bullying, no rapes, no drugs, fights or gang associations. Surely that’d work? The other way clearly doesn’t.

It’s not that Maori commit 50% of the crime but the types of crimes they commit are the ones that are more likely to have penalties of imprisonment.

You have to be a pretty bad fraudster amongst the business elite to get sent to prison. You have to have killed a lot of people through employer negligence before being investigated. Or, if investigated, a rich person can pay their way out of it e.g. Cave Creek.

That makes perfect sense. Why someone who loses tens of millions of client’s money doesn’t do 200 years in the Sing-Sing escapes me, I must confess – and I doubt if many of the Maori prison population are ever in a position to commit crimes such as that.

My friend Tom Scott (and probably yours also Brian) was once asked in my presence what he considered the world’s most useless activity. Tom pondered for a moment and replied: “A strike of philosphers”. Once when I was young and foolish I set out to study philosophy at a tertiary level and stuck it for about a month before I walked away laughing uncontrollably at the spectacle of people spending their time on such a patently pointless activity when they could be drinking and generally having a good time. I have never regretted my decision

On the contrary, I have considerable intellectual curiosity as I think you find if you read one or two of my books. In fact it’s got me into endless trouble with the authorities over the years. It’s just that I don’t have the time to waste it on fruitless pursuits

I have never written a book about scones. What you may be referring to is a keynote speech I once gave at a literary festival entitled “The Scone in New Zealand Literature” which has nothing to do with scones – the title is ironic – and everything to do with the meaning (if any) of our allegedly having a national literature. But as Brian has noted previously irony is often not understod by New Zealanders

Burglary actually raises GDP through insurance replacement etc. The government gains through G.S.T. and general gains in economic activity. This is surely compelling logic to ACT. Wittgenstein would be proud of Jamie Whyte if he actually proposed an increase in burglary.

I just watched “Kids for Cash”. Horrifying. Thank you for bringing it to my attention, David. I hope other visitors to this site take the time to look at it as well. Not everything in this country is as it should be in an enlightened democracy, but when you look at the United States you see how much we have to be grateful for in New Zealand. Grateful but not complacent. We’re still a society more comfortable with revenge and punishment than with reconciliation. I’ve twice been awarded the New Zealand Media Peace Prize for broadcasting and writing on this topic. Some things have changed for the better since I came here in 1964 but the ‘thrown them in jail and toss away the key’ attitude still prevails. You’ll find it exemplified in some of the comments above. But that’s nothing to the mindless ‘hang ‘em high’ thinking you’ll find on other sites.

It bothers me how you wail on about locking up criminals. A repeat burglary offender should draw a 5-year non parole sentence of imprisonment on his second conviction, not his third. You would find that the wider populace would be in support of this. An offender who commits any violence in the act of a break-in, should have a 10-year sentence of imprisonment imposed; of which the FULL sentence would need to be served, because it is no different to a home invasion. Enough of this touchy-feely, incense-burning, New-Agey weak-kneed rubbish.

A 20 year old girl who works for me (all my staff are that age or under: if I didn’t understand and want to work with young people, I’d get a job that pays better) quit school at 15 to spend her school days hanging out with druggies under a bridge. The first her parents heard about this was when they went to a parent teacher meeting and the teacher didn’t know who they were asking about.

What stopped me – three times her age – from bunking school was the surity that if I got caught I’d get the hiding of my life from my father. Had I got a hug and been told it didn’t matter or it wasn’t my fault, and offered a benefit to leave home at 16, I’d probably have spent a few days dipping out on physics or Latin. But I’m an expert on Newton’s Laws of Motion, and amo, amas, amat and all that.

Sometimes, Richard, the liberal way won’t work. I appreciate that you have found that it often can, but one size doesn’t always fit all.

If you ever use a GPS, you’ll thank those who didn’t think Newton’s Laws were all that we ever needed. I feel sorry for the kids who work for you. You seem like the sort that would have problems dealing with adults.

That might be relevant if the people in this context were going beyond Newton’s Laws and building GPS satellites; but they’re not, are they? They’re hanging out with dope smokers and getting pregnant because they know it’s an easy (though hardly luxurious) meal ticket.

But no, apparently underage girls would bring just the same number of babies to term regardless of whether benefits awaited them when they do, because they are “akratic”.

Or maybe living on the dole raising one child after another isn’t evidence of akrasia at all, but merely a combination of low standards and a sense of parasitic entitlement engendered by guys like you, Brian?

Here’s the thing, Brian; you want to help (and incentivise) teenage mums to have kids, by paying for their kids’ upbringings? Go ahead! Just don’t put the government’s gun to everyone else’s head and force them to pay for your favorite charities.

I have spent nearly two decades working on the coal face in prisons. We have tried the the hard road, we have tried the education road, we have tried the work them road. All have had varying degrees of success. One of the issues is prisoners reflect society. Prisoners are not the same. There is not a mould that they are produced from. All the above and NZ media and the guy leaning against the bar/ water cooler appears to believe they do. There is no silver bullet, there are many silver bullets as there are many wasted solutions that go nowhere and squander scarce resources.
Corrections is trying a multi approach now with linked up community and Govt agencies looking at individual and family problems together. Police, Cps, councils, Iwi, community, individuals, whanau, victims all getting around tables ( AVL ) and working through problem people and families and coordinating strategies. We are making a big difference. We are tailoring solutions to individuals and we are succeeding. It is slowly changing results.
A couple of points, solitary can be seen by some as an initiation test. They need it to gain ” kudos” in their world. Some need it for their own perceived mental health. How does that fit the punishment model. And yes the biggest impact on criminal thinking I have found in all my years was the third strike model. They talk about it all the time. Will it be the silver bullet? No!